AMERICAN BAR ASSOCIATION SECTION OF LABOR & EMPLOYMENT LAW ANNUAL CLE CONFERENCE

Transcription

1 AMERICAN BAR ASSOCIATION SECTION OF LABOR & EMPLOYMENT LAW ANNUAL CLE CONFERENCE THE TRADITIONAL LABOR LAW TRACK: CLASSIC LAW OF LABOR-MANAGEMENT RELATIONS NLRA BASICS: A SHORT PRIMER Steven W. Suflas, Esquire Ballard Spahr Andrews & Ingersoll, LLP Plaza 1000, Suite Main Street Voorhees, NJ Dorothy L. Moore-Duncan, Esquire Regional Director National Labor Relations Board 615 Chestnut Street Philadelphia, PA November 8, 2007 DMEAST # v1

2 OVERVIEW OF THE NLRA AND THE NLRB I. HISTORY A. National Labor Relations Act of 1935 (The Wagner Act). In 1934 and 1935, Senator Wagner of New York introduced bills in the United States Senate to give federal support to employee organizations and collective bargaining. The National Labor Relations Act ( NLRA ) was passed by Congress, signed into law by President Roosevelt, and became effective on July 5, The NLRA is frequently referred to as the Wagner Act in recognition of the efforts, energy and legislative expertise of Senator Wagner in bringing to fruition the origin of modern American labor law. The cornerstone of the NLRA was Section 7, which originally provided: Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Unlike the earlier provisions of the National Industrial Relations Act ( NIRA ), 48 Stat. 198 (1933), the NLRA made the rights set forth in Section 7 legally enforceable. The NLRA also required employers to bargain collectively with employees through representatives [labor organizations] chosen by the employees. In addition to the rights established in Section 7 the right to organize, the right to bargain collectively, and the right to engage in strikes, picketing and concerted activities the Wagner Act established the National Labor Relations Board. The initial National Labor Relations Board (frequently referred to as the Board or the NLRB ) consisted of three (3) members appointed by the President by and with the advice and consent of the Senate. The Wagner Act defined certain acts and practices of employers as unfair labor practices in Section 8; and provided that the Board would decide in each case the appropriate unit for the DMEAST # v1

3 purpose of collective bargaining, hold hearings, conduct secret elections, and resolve questions of representation. Section 10 of the Wagner Act empowered the Board to prevent any person from engaging in any unfair labor practice (listed in Section 8), including the issuance of complaints and the holding of hearings, and the authority to issue an order requiring persons to cease and desist from unfair labor practices and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of the Act. B. Labor Management Relations Act of 1947 (The Taft-Hartley Act). The Labor Management Relations Act of 1947 ( LMRA ; Taft-Hartley Act, or NLRA, is amended ) was enacted on June 23, 1947, and the amendments became effective 60 days thereafter, except that the authority of the President to appoint certain officers as set forth in Section 3 became effective immediately. The Taft-Hartley Act increased the membership of the Board from 3 to 5 Members, and authorized the Board to delegate to any group of three or more Members any or all of the powers it may itself exercise. The Taft-Hartley Act established the position of General Counsel of the Board who, like the Board Members, is appointed by the President by and with the advice and consent of the Senate. The General Counsel of the Board exercises general supervision over all attorneys employed by the Board (other than Trial Examiners and legal assistants to Board Members) and over the officers and employees in the Regional Offices. The General Counsel has final authority, on behalf of the Board, with respect to the investigation of charges and issuance of complaints under Section 10, and with respect to the prosecution of such complaints before the Board. The separation of the judiciary and prosecutorial functions in the LMRA was in response to criticism under the Wagner Act that the NLRB appeared to function as judge, jury, and prosecutor. DMEAST # v1

4 Section 7 (Rights Of Employees) was amended by the Taft-Hartley Act as follows: Employees shall have the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring members in a labor organization as a condition of employment as authorized in Section 8(a)(3). (LMRA amendments in bold letters) Section 8(b) was added and stated, among other provisions, that it was an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed in Section 7; to refuse to bargain collectively with an employer; and to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a refusal in the course of their employment, for certain prohibited objectives. The LMRA added Section 8(c) which provided: The expression of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. The Taft-Hartley Act stated in Section 8(d) that to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times, and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party... The Taft-Hartley Act made some changes in Section 9 including the filing of a decertification petition, and providing that the Board would conduct only one (1) election in a 12-month period. Section 10(b) was amended to provide than no complaint shall issue based DMEAST # v1

5 upon any unfair labor practice occurring more than six (6) months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. The Taft-Hartley Act added Sections 14(a) and (b), which provided as follows: (a) Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining. (b) Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law. The Taft-Hartley Act established the Federal Mediation and Conciliation Service ( FMCS or Service ), and set forth the functions of the Service. LMRA also included a provision where, in the opinion of the President, a threatened or actual strike or lockout affecting an entire industry or substantial part thereof will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within such time as he shall prescribe. C. The Labor-Management Reporting And Disclosure Act of 1959 (Landrum- Griffin Act). The Labor-Management Reporting and Disclosure Act of 1959 ( LMRDA or Landrum-Griffin Act ) was signed into law on September 15, 1959 by President Eisenhower. The Landrum-Griffin Act consisted of two major parts: Titles I through VI pertain to a bill of rights for union members, reporting requirements, trusteeships, elections, and miscellaneous provisions; and, Title VII, amendments to the Taft-Hartley Act. Some of the major amendments to the Taft- Hartley Act included the closing of alleged loopholes in the secondary boycott provisions; the addition of a publicity proviso to Section 8(b)(4)(D); the addition of Section 8(b)(7); prohibited so-called hot cargo agreements in Section 8(e), with the exception DMEAST # v1

6 of the construction and garment industries; and added Section 8(f) which permitted prehire agreements in the construction industry and agreements in the construction industry which required membership in a labor organization after the 7 th day following the beginning of employment. D. Other Amendments To The National Labor Relations Act. In addition to the 1947 and 1959 amendments to the National Labor Relations Act, there have been other Federal Statutes or laws which have amended certain provisions of the NLRA. Public Law , enacted July 26, 1974, added Section 8(g) which requires notification of intention to strike or picket at any health care institution; and Section 19 concerning employees with religious convictions. There have also been a number of changes over the years to Section 302, Restrictions On Payments To Employee Representatives. II. GENERAL OVERVIEW OF THE NLRB 1 AND THE NLRA, AS AMENDED. A. Structure of the National Labor Relations Board. 1. The Board a. Function The chief quasi-judicial body under the NLRA, as amended. b. Size The Board consists of five (5) Members appointed by the President for five (5) years, with the advice and consent of the Senate. The terms of the Board are staggered. Usually the Board Members sit on panels of three (3) Members. c. Executive Secretary The Chief administrative officer responsible for assigning and monitoring cases, receiving and docketing documents, and other administrative duties. DMEAST # v1

7 d. Information Division Responsible for press announcements, public announcements, and the publication of a weekly summary of Board Decisions. e. Solicitor Chief legal advisor to the Board. f. Division of Judges The Administrative Law Judges ( ALJ ) function as the trier of fact in unfair labor practice proceedings; and render Decisions containing findings of fact, conclusions of law, and a recommendation(s) as to the disposition of the case. The case, after hearing and the issuance of the Decision, is then transferred to the Board. 2. The General Counsel Of The NLRB a. Function The General Counsel exercises general supervision over all attorneys employed by the Board (except ALJs and legal assistants to Board Members), and over the officers and employees in the Regional Offices; has final authority on behalf of Board to investigate charges, issue and prosecute complaints, handle appeals, seek 10(j) injunctions, the overall supervision of the investigation and processing of representation petitions; and other duties prescribed by the Board or provided by law. b. Term The General Counsel is appointed by the President for four (4) years, with the advice and consent of the Senate. c. Division of Advice Responsible for giving advice to Regional Offices concerning complex or new legal issues. DMEAST # v1

8 d. Division of Enforcement Litigation Responsible for litigation to enforce or defend orders of the NLRB. e. Division of Operations Management Responsible for supervising the field operations. f. Regional Offices The Regional Director supervises a staff consisting of a Regional Attorney, field attorneys, field examiners, and other personnel. Some of the Regional Offices have separate Resident Offices header by a Resident Officer. B. Coverage Under The NLRA, As Amended. 1. Person Section 2(1) defines the term person to include one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in cases under Title 11 of the United States Code, or receivers. 2. Employer Section 2(2) defines the term employer to include any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization. 3. Employee Section 2(3) defines the term employee to include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, or by any other person who is not an employer as herein defined. 4. Representative Section 2(4) defines the term representative to include any individual or labor organization. DMEAST # v1

9 5. Labor Organization Section 2(5) defines the term labor organization to mean any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. 6. Commerce Section 2(6) defines Commerce to mean trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. 7. Affective Commerce Section 2(7) defines the term Affecting Commerce to mean in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. 8. Supervisor Section 2(11) defines the term supervisor to mean any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. C. Current Jurisdictional Standards Of The NLRB Nonretail Enterprises gross outflow or inflow of revenue of at least $50,000, whether such outflow or inflow is regarded as direct or indirect. 2. Retail Establishments gross business volume of at least $500,000 per year and substantial purchases from or sales to other states on a direct or indirect basis. When an employer s operations are both retail and nonretail, the nonretail jurisdictional standards are applied unless the nonretail portion is de minimis. 3. Office Buildings and Shopping Centers gross revenue of at least $100,000 per year, of which at least $25,000 is derived from organizations whose operations meet any of the Board s jurisdictional standards other than indirect inflow or outflow standards. 4. Public Utilities gross business volume of at least $250,000 per year or an interstate outflow or inflow of goods, materials, or services of $50,000 or more per year, whether directly or indirectly. DMEAST # v1

10 5. Newspapers gross business volume of at least $200,000 per year. 6. Radio and Television Stations; Telephone and Telegraph Systems gross business volume of at least $100,000 per year. 7. Hotels, Motels, Apartments, and Condominiums gross revenues of $500,000 or more per year. 8. National Defense Enterprise substantial impact on the national defense, irrespective of whether the operations satisfy any other jurisdictional standard. 9. Employer Associations any member meets any jurisdictional standard, or the combined operations of all members meet any such standard. 10. Secondary Employers in cases involving union conduct with respect to secondary employers, if the primary employer meets any of the jurisdictional standards or if the combined operations of the primary employer and the business of any secondary employers at the location affected by the conduct meet such standards. 11. Single Employer Engaged In Multiple Enterprises the employer s overall operations meets any jurisdictional standard. 12. Instrumentalities, Links, and Channels of Interstate Commerce gross revenue of at least $50,000 per year derived from furnishing interstate transportation services or functioning as essential links in such transportation of passengers or commodities. 13. Other Transit Systems gross volume of at least $250,000 per year. 14. Restaurants and Country Clubs gross annual volume of at least $500, Hospitals at least $250,000 gross annual revenue. 16. Nursing Homes, Visiting Nursing Associations, and Related Facilities at least $100,000 gross annual revenue. 17. Gambling Casinos where gross annual revenues exceed $500, Symphony Orchestras gross annual revenue from all sources of at least $1,000, Law Firms and Legal Assistance Programs jurisdiction is asserted where gross annual revenues are $250,000 per year. DMEAST # v1

11 The NLRB has other jurisdictional standards besides the above list of jurisdictional standards covering such entities or organizations as professional sports, horse and dog racing, non-profit, private educational, and religious institutions, architects, museums, accounting firms, real estate firms and associations, etc. 1 2 For more information on procedure before the NLRB, see How to Take a Case Before the NLRB, Sixth Edition, and 1998 Supplement, published by the Bureau of National Affairs. The Developing Labor Law, Third Edition, Volume II, Chapter 28, published by the Bureau of National Affairs. DMEAST # v1

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13 REPRESENTATION LAW AND PROCEDURES I. INTRODUCTION The National Labor Relations Act ( NLRA or the Act ) was primarily designed to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining. 1 As a prerequisite to collective bargaining, however, Employees must obtain a Union to serve as their authorized bargaining agent. Employees may obtain a Union through (1) a representation-election, (2) voluntary recognition, or (3) a bargaining order. Although this article focuses on the election process, it closes with a brief discussion of voluntary recognition and bargaining orders. II. THE ELECTION PETITION The election process begins when Employees, the Employer, or a Union files an election petition with the National Labor Relations Board ( NLRB or the Board ) to determine whether the Union is entitled to represent a group of Employees for purposes of collective bargaining. There are six types of petitions. A. Certification Of Representative ( RC ) Petition Employees or the Union (or two Unions seeking to act as a joint representative) can file an RC Petition with the Board seeking certification as the Employee s representative. 2 Two elements must be established. First, in most representation matters, the Board requires a petitioner to prove there is sufficient Employee interest in a representation election. Generally, at least thirty percent of the Employees must support the petition, the required showing of interest, and evidence of this support must be filed with the petition or within forty-eight hours thereafter. 3 The showing of interest can be proven by the submission of signed and dated Union authorization cards. The Employer may not inspect the authorization cards, and no litigation is permitted concerning fraud, forgery or coercion in obtaining the cards. Second, the DMEAST # v1 13

14 Employer must refuse to recognize the Union, which can occur when the Union demands recognition or at the Representation Hearing. B. Representation ( RM ) Petition Where a Union demands recognition, the Employer may file an RM Petition without any showing of interest. 4 The Employer must allege and prove that the Union has demanded recognition. A demand for recognition includes (i) a Union s submission of a proposed contract or a request for a contract, 5 (ii) picketing for recognition or organization, 6 and (iii) a request for contract renewal by an incumbent Union. 7 Union campaigning does not constitute a claim for recognition. 8 In addition, the Employer may file an RM Petition to test the majority status of an incumbent Union. The Employer, however, must have a good faith uncertainty that a majority of the unit employees continue to support the union.. 9 The required evidence must be specific and detailed, e.g., the names of the employees must be listed. The evidence must be objective and reliably indicate that a majority of employees oppose the incumbent union, rather than mere speculation. Such evidence would include, but is not limited to, anti-union petitions signed by unit employees, firsthand employee statements including a desire to no longer be represented by the incumbent union, employees unverified statements regarding other employees anti-union sentiments, and employees statements expressing dissatisfaction with the union s performance as bargaining representative. As in a showing of interest, the names are confidential and the specific extent of dissatisfaction is not divulged to the union. C. Decertification ( RD ) Petition Employees who wish to rid themselves of a Union can file an RD Petition upon a thirty percent showing of interest. 10 The Employer cannot instigate or assist these Employees. 11 In response, however, to questions by Employees, the Employer can advise Employees as to the DMEAST # v1 14

15 proper procedure for filing an RD Petition. 12 Employees cannot decertify part of a unit, thus, a single plant in a multi-plant unit cannot file an RD Petition for only that single plant. D. Withdrawal Of Union Shop Authority ( UD ) Petition Employees seeking to rescind the Union s authority to make an existing Union-shop agreement with the Employer can file a UD Petition anytime upon a thirty percent showing of interest. 13 The UD Petition only revokes the Union security provision of the collective bargaining agreement. E. Unit Clarification ( UC ) Petition The Employer or Union can file a UC Petition to seek clarification or placement of classifications of Employees within an existing bargaining unit, if no question concerning representation is pending. 14 The UC Petition can be filed even for an uncertified bargaining unit. 15 F. Amendment Of Certification ( AC ) Petition The Employer or Union can file an AC Petition (1) to resolve an ambiguity in the description of a certified unit, (ii) to reflect a change in the duties of certain Employees in the unit, or (iii) to reflect a change in the identity of the bargaining agent. 16 III. POST-PETITION INVESTIGATION BY REGIONAL OFFICE OF NLRB The Election Petition is filed with the Regional Office, docketed, and assigned to a Board Agent. The Regional Director immediately sends a copy of the petition and various forms to each party and may schedule a Representation Hearing (the Hearing ) to occur ten to fifteen days thereafter. The Regional Office then determines, among other things, whether the NLRB has jurisdiction, whether there has been a showing of interest, and whether the petition is timely. The NLRB will dismiss a petition if one of these elements is lacking. 17 DMEAST # v1 15

16 A. Jurisdiction Of NLRB Commerce Requirement The NLRB has jurisdiction over all labor disputes affecting interstate commerce, including representation proceedings. However, rather than exercising jurisdiction over every conceivable commercial operation, the NLRB set up minimum standards for the exercise of jurisdiction. These minimum standards are by industry based on the yearly dollar amounts of outflowing and inflowing goods and services of a direct and indirect nature. 18 If an Employer fails to meet the minimum standards, the Board will refuse to exercise its jurisdiction. Generally, this does not present a problem for Employers because the minimum jurisdictional dollar amounts are quite low. B. Showing Of Interest The Employer must, if requested, submit to the Regional Director a list that identifies the Employees and job classifications in the petitioned for unit as of the close of the payroll period immediately preceding the date the petition was filed. The Regional Director s responsibility is to cross-check the Union authorization cards with the list to determine whether the cards are current and sufficient in number. Furthermore, if any party raises allegation of fraud (other than forgery), misconduct or supervisory taint in connection with the showing of interest, the party will be directed to present its supporting evidence to the Regional Director within 7 days after raising them. If the Regional Director is presented with supporting evidence that gives reasonable cause to believe that the showing of interest may have been invalidated, the Regional Director should conduct a further administrative investigation. In the event a party attempts to present such evidence more than 7 days after raising the allegations, the Regional Director may regard the evidence as untimely filed and is not required to consider it, absent unusual circumstances. 19 DMEAST # v1 16

17 C. Timeliness Of The Election Petition 1. One-Year Rule Statutory Bar An election cannot be held in any bargaining unit in which a final and valid election was concluded within the preceding twelve-month period. 20 This twelve-month period begins to run on the actual date of the prior election, not from the date the Union was certified. The rule does not preclude an election in a broader unit and does not apply to a rerun or runoff election 21. If a prior election results in a vote for no Union, the one-year period runs from the date of that election One-Year Certification Rule Absent unusual circumstances, a Union s certification will bar another petition during the subsequent twelve-month period. 23 This period, unlike the period for the One-Year Rule Statutory Bar, begins to run from the date of certification, not the date of the election. Unusual circumstances include (i) conflict as to the identity of the bargaining agent, (ii) defunctness of a certified Union, and (iii) radical fluctuation in the size of the bargaining unit within a short period of time. It does not include the repudiation of the Union by Employees. The one-year period can be extended by the Board if it determines the Employer has refused to bargain in good faith with the certified Union Pendency Of An Unfair Labor Practice ( ULP ) Charge If a ULP charge is filed or pending, the NLRB generally will not process an election petition absent a request to proceed by the charging party. This rule is known as the blocking charge rule and is discretionary, not statutory. 25 The rule will not be applied if (i) employees could, under the circumstances, exercise their free choice in an election notwithstanding the charge; (ii) the petition and charge raise significant common issues (iii) or where a R case DMEAST # v1 17

18 hearing or an election has been scheduled and time does not permit the determination on the possible merits of a recently filed charge. 4. Fluctuating Work Force The Regional Director will dismiss a petition without prejudice if the representative work force is not present or if substantial corporate changes are occurring. If the work force is seasonal, the election is held at the seasonal peak. 5. Contract Bar Rule An existing and valid contract generally will bar an election petition for the actual duration of the contract or up to three years, whichever is shorter. The contract must be in writing, signed, and contain all material terms, including a specific duration. 26 This practice is discretionary and not statutorily mandated. a. Exceptions The contract bar rule generally does not apply in the following situations: i. Where the contract contains illegal per se clauses; 27 ii. iii. Where the contract is extended during its term; Where the contract is executed before any Employees are hired, e.g., a pre-hire agreement in the construction industry; iv. Where the Union either becomes defunct or develops a schism such that its identity is destroyed, or; v. Where the nature of the operation substantially changes between the execution of the contract and the filing of the election petition. Such changes include (i) a merger or consolidation of two or more operations creating a new DMEAST # v1 18

19 operation with major personnel changes and (ii) a resumption of operations, after an indefinite period of closing, with new Employees. A change in the number of Employees due to a relocation does not affect the contract bar rule. 28 b. Hot Cargo A contract with an illegal hot-cargo clause will not bar an election. 29 c. Accretion An existing contract may bar an election at a newly acquired or constructed facility if the contract is extended to cover the Employees in the new operation. Whether the contract is extended depends upon a variety of factors, including: (i) the degree of Employee interchange; (ii) centralization of labor relations; (iii) distance between facilities; (iv) integration of product lines, machinery, and operations; (v) similarity of skills and working conditions; and (vi) the ratio of the number of Employees at the existing facility to the new facility. 30 A review of these factors will determine whether the new facility is sufficiently integrated into the current operation to justify the application of the contract as a bar. The Board has stated that Employee interchange and common day-to-day supervision are especially important in a finding of accretion. d. Time Limits An election petition can be filed between ninety and sixty days prior to a contract s expiration. 31 A petition will be DMEAST # v1 19

20 considered untimely if it is filed more than ninety days before the contract s expiration or during the sixty-day period immediately preceding the termination date. A petition filed on the sixtieth day prior to the contract s expiration is untimely. i. After the contract expires, a petition will be timely if it is filed (i) before the execution of a new contract, or (ii) between the new contract s execution date and effective date. 32 If the new contract is effective immediately or retroactively, a petition filed on the day the contract is executed will be timely if the Employer was previously informed of that petition. 33 ii. In the health care industry, the petition must be filed between 120 and ninety days prior to the contract s expiration. 34 In seasonal industries, the ninety-day limit generally applied to petitions may also be extended. 35 IV. VOLUNTARY ELECTION AGREEMENTS If the Board determines that the requirements for a valid petition and election have been satisfied, the Board generally will attempt to obtain agreement from the parties on issues such as jurisdiction, appropriate bargaining unit, voter eligibility and time and place of the election. Securing consent on these issues eliminates the need for a formal Representation Hearing. If a Voluntary Election Agreement is not obtained, the NLRB will hold a Representation Hearing. DMEAST # v1 20

21 A. Three Forms Of Voluntary Election Agreements 1. Agreement For Consent Election ( Consent ) With the Regional Director s approval, the parties can execute a Consent, agreeing to waive their right to a Hearing at any stage of the proceedings. The Consent gives the Regional Director the authority to make the final decision on all election issues, including the validity of challenged ballots and objections and voter eligibility. 36 The determinations made by the Regional Director on all issues are final and not subject to review by the Board, unless they are determined to be arbitrary or capricious Full Consent Election Agreement On January 25, 2005, the Board published in the Federal Register final revisions of Parts 101 and 102 of its Rules and Regulations. These revisions include a new Section (c) which provides a third election agreement option for the parties to a representation case. As with the traditional consent agreement under Section (a), all post election disputes challenges and objections would be decided by the Regional Director with no right of appeal to the Board. The Regional Director would investigate those matters either administratively or through a hearing and issue a report setting for the his/her findings, which would be final and binding Stipulation For Certification Upon Consent Election ( Stip ) In a Stip, the parties also waive their right to a pre-election Hearing and all disputes initially are decided by the Regional Director. However, the parties retain their right to a Hearing after an election. Additionally, the Board, not the Regional Director, renders the final decision on all election issues, including voter eligibility, challenged votes and objections to the conduct of the election. 39 DMEAST # v1 21

22 B. Terms Of Voluntary Election Agreement If a Voluntary Election Agreement is possible, the Regional Office will hold an informal conference to determine the following: 1. Date Generally four weeks after the conference; payday may be most appropriate because absenteeism usually is at a minimum. 2. Place Generally held at the Employer s premises. 3. Time Based on work schedules. Polls are generally open at and around the beginning and end of each work shift. One hundred Employees can vote per hour. 4. Appropriate Bargaining Unit Parties can agree on unit composition as long as it does not conflict with the NLRA or well-established NLRB doctrine. 5. Voter Eligibility Specific payroll period for determining voter eligibility. Parties can agree upon final list of eligible voters as long as it does not conflict with NLRA. V. REPRESENTATION HEARING If the parties do not enter into a Voluntary Election Agreement, the NLRB will hold a Representation Hearing to ensure that the record contains as full a statement of the pertinent facts as may be necessary for the Regional Director or the Board to rule upon representation issues. 40 A. Structure Of The Representation Hearing The Representation Hearing, which is non-adversarial and investigative in nature, is held before a hearing officer who is normally an attorney or field examiner associated with the Regional Office. 41 The parties may appear and be represented by counsel. The hearing officer and the parties may call, examine and cross-examine witnesses and introduce into the record any other evidence. Although witnesses testify under oath, the rules of evidence are not controlling. 42 Oral argument is permissible but parties generally waive it and are permitted to file written briefs within seven days after the Hearing. DMEAST # v1 22

23 B. Stipulations Entered Into At The Representation Hearing At the beginning of the Hearing, the hearing officer generally will seek stipulations (i) to correct the names of parties and amend the petition if necessary, (ii) as to facts regarding NLRB jurisdiction, (iii) as to the status of the petitioner and intervenor as a labor organization, and (iv) as to uncontested job classifications or the status of particular Employees. C. Intervention By A Union A Union can intervene in a Representation Hearing based on an RC, RM or RD petition if it makes the required showing of interest. 1. Showing Of Interest The showing of interest required by intervenors is subject to different rules than those for petitioners. A Union seeking to participate fully in all related proceedings must prove it has at least a ten percent showing of interest among the Employees. 43 A showing of less than ten percent will allow the intervening Union to participate in any representation proceeding and be placed on the ballot; however, the Union will not be entitled to object to or block a consent election. 44 A Union can also satisfy the required showing of interest if it is: (i) the certified or currently recognized bargaining agent of the Employees involved, or (ii) party to a currently effective or recently expired collective bargaining agreement covering those Employees Timeliness Of Intervention The required showing of interest must be made within forty-eight hours of the request to intervene. a. If the showing of interest is late, the intervenor can still participate at the Hearing to the extent of its showing of interest if. (i) it is made before a Consent Election Agreement is approved or before the Hearing is terminated; or (ii) the Union had no pre-consent DMEAST # v1 23

24 or pre-hearing notice and the Union s showing of interest predated the approval of the consent agreement. 46 b. If the forty-eight hour notice has been given to the intervenor and the showing of interest is made after a Consent Election Agreement has been approved or after the Hearing has been terminated, the intervenor cannot participate in further proceedings, but can be added to the ballot in a consent election if the parties thereto approve. D. Determining An Appropriate Bargaining Unit Section 9(a) of the NLRA provides that a representative selected by a majority of the Employees in a unit appropriate for purposes of collective bargaining shall be the exclusive representative of all the Unit. 47 Employees in that The Board need not determine the only appropriate unit, or the ultimate unit, or the most appropriate unit: the Act requires only that the unit be appropriate. 48 Consequently, if a petitioning Union seeks a unit that the Board finds appropriate, the Employer s alternative proposals will not be considered Factors Considered The NLRB will assemble an appropriate bargaining unit based on the community-ofinterests test, which assesses whether Employees enjoy a substantial mutuality of interest in wages, hours and working conditions The Board considers a number of factors in determining whether there exists an appropriate unit, including: (i) similarity of duties, skills, wages, fringe benefits, hours, interest and working conditions; (ii) amount of interchange among Employees; (iii) the Employer s organizational structure; (iv) integration of the work flow and interrelationship of the production process; (v) bargaining history in the particular unit and industry; (vi) extent of organization; and (vii) desires of petitioner. 51 DMEAST # v1 24

25 2. Job Classifications Excluded From The Bargaining Unit a. Supervisors includes Employees that can affect the terms of another Employee s employment by having authority, in the interest of the Employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other Employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, where the exercise of such authority requires use of independent Judgment. 52 The fact that a person is called a supervisor, even if by himself, is not enough to meet the statutory standards of Section 2(11). 53 A tension exists between the exclusion of supervisors from the Act s protections and the inclusion of professional Employees. Because most professional Employees assign and direct other Employees work, a literal reading of Section 2(11) would likely substantially reduce the number of professionals covered by the Act. To accommodate this tension in cases involving nurses and certain other professional Employees, the Board adopted a narrow reading of the phrase in the interest of the Employer. In its Health Care & Retirement Corp. decision, the Supreme Court reversed the Board s holding that nurses who direct Employees in the care of patients do not have authority in the interest of the employer and are therefore not supervisors. 54 The Court found that directions given in the interest of quality treatment for the patients are actions taken on behalf of the Employer. The Court DMEAST # v1 25

26 stated that three questions must be answered in the affirmative if an Employee is to be deemed a supervisor: (1) does the Employee have the authority to engage in one of the activities listed in Section 2(11) of the Ac?; (2) does the exercise of that authority require the use of independent judgment?; and (3) does the Employee hold the authority in the interest of the Employer? 55 In Kentucky River Community Care, Inc., 56 the Board held that registered nurses were not supervisors, despite their independent direction of other employees engaged in patient care, because the exercise of ordinary professional or technical judgment in directing less-skilled employees to deliver services could not constitute independent judgment in responsibly directing employees under Section 2(11). The Supreme Court rejected this interpretation of the statute, and found that, although it is within the Board s purview to determine the degree of discretion required for a finding of supervisory status, the Board could not interpret the statute to eliminate a particular kind of judgment, no matter how significant and loosely constrained by the employer, from the term independent judgment. The Court noted that almost any supervisory judgment worth exercising would rest on professional or technical skill or experience, and that if the Board applied its test to the other 11 supervisory functions (which would be required to avoid an asymmetrical interpretation of the DMEAST # v1 26

27 statute since the term independent judgment applied to all 12), there might be no supervisors outside the protection of the Act. 57 However, the Court endorsed the NLRB s rule that the burden of proof on the issue of supervisory authority rests with the party asserting that position. b. Managerial Employees includes Employees (i) who formulate and effectuate management policies by expressing and making operative the decisions of their Employer, and (ii) who have discretion in the performance of their jobs independent of their Employer s established policies. 58 c. Agricultural Laborers includes Employees who work primarily in connection with the agricultural operation, not the commercial operation, of agricultural products. 59 d. Confidential Employees includes Employees (i) who are closely related to management or supervisory Employees and (ii) whose work involves labor relations. Secretaries for the plant manager or personnel department have been held to be confidential, but clericals in accounting, production control or payroll were not. 60 e. Independent Contractors includes those entities and individuals who exercise considerable control over their method and mode of job performance. In determining independent contractor status, the Board applies the common-law agency test DMEAST # v1 27

28 and considers all the incidents of the individual s relationship to the employing entity; no one factor is given controlling weigh. 61 f. Certain Family Members includes Employees who work for a parent or spouse, 62 or those the Board determines whose interests are aligned with the management in some other way. 63 g. Domestic Servants h. Employees Of Excluded Employers includes the Employees of (i) the United States or any wholly owned government corporation, (ii) states or their political subdivisions, (iii) Federal Reserve Banks, (iv) persons subject to the Railway Labor Act, 64 (v) Employers who are not subject to the jurisdiction of the NLRB, and (vi) Employers over whom the NLRB refuses to assert jurisdiction. 3. Special Job Classifications Included In The Bargaining Unit a. Driver-Salesman are generally included in the salesman unit, not the driver unit. 65 b. Hospital Interns and residents interns, residents and fellows fall within the broad definition of employee under Section 2(3) of the Act, notwithstanding that a purpose of their being at a hospital may also be, in part, educational. 66 c. Graduate Assistants Emblematic of the sometimes shifting sands of the substantive law under the National Labor Relations Act is the issue of whether teaching assistants, graduate assistants and research assistants at institutions of higher learning are DMEAST # v1 28

29 employees within the meaning of the NLRA. In New York University, 67 the Board reversed prior precedent and reasoned that while graduate students are students, because they are paid to perform services under the direction and control of the employer, they fall within the coverage of Section 2(3) of the Act. However, in Brown University, 68 the Board overturned New York University and returned to 25 years of pre-existing precedent in holding that the relationship between graduate assistants and their universities are primarily academic, rather than economic, in nature. d. Part-Time Employees Part-time Employees, who work on a regular basis for a sufficient period of time, are generally included in the bargaining unit if they have a substantial and ongoing interest in the wages, hours and working conditions of the full-time unit Employees. Employees working on call or for short periods of time and at different wage levels will not be included in the bargaining unit, unless the on-call Employee has a substantial work history as well as the likelihood of continued regular employment. 69 e. Technical Employees Highly skilled Employees who do not meet the statutory test for professional Employees generally are placed in a separate bargaining unit. 70 In the health care industry, a separate technical unit generally will be created if requested by the petitioner. 71 DMEAST # v1 29

30 f. Employees on Lay-Off are generally included in the bargaining unit if they have a reasonable expectation of being recalled. g. Probationary Employees are generally included in the bargaining unit if they expect to become full-time Employees and share other interests with the full-time Employees. 4. Special Rules Applicable To Certain Bargaining Units a. Professional Units The Board may not decide that a unit containing professionals and non-professionals is an appropriate bargaining unit unless a majority of the professionals vote for inclusion. 72 In the absence of any determination by the Board, an Employer and a Union may agree to an appropriate unit, containing both professionals and non-professionals. A professional is defined as one whose work (i) is predominantly intellectual and varied in nature, (ii) involves consistent exercise of discretion and judgment, (iii) does not involve output that is standardized in relation to time, and (iv) requires knowledge of an advanced type in a field of science requiring extensive study. 73 b. Guard Units Guards may not be included in the same unit with other Employees (non-guards). A guard is defined as one who enforces rules to protect (i) the property of the Employer and/or (ii) the safety of persons on the Employer s premises. 74 c. Craft Units Craft units may seek severance from a larger bargaining unit. 75 The decision to sever is made on a case-by-case basis with a consideration of the following factors: (i) the existence DMEAST # v1 30

31 of distinct and homogeneous groups of skilled craftsmen or a department of Employees working in trades or occupations having a tradition of separate representation; (ii) the bargaining history in the industry and at the plant and other plants of the Employer; (iii) the extent to which Employees seeking severance have maintained a separate identity within the broader unit; (iv) the degree of integration of the manufacturing process and the extent it is dependent upon the Employees sought; and (v) the experience of the petitioning Union in the representative crafts. 76 d. Department Units Department units may be formed, depending on whether (i) the department is functionally distinct and separate (based on factors for assembling bargaining units), and (ii) the petitioning Union has traditionally represented the Employees in question. e. Multi-Plant Unit There is a presumption in favor of a singleplant unit. Even where the Employer transfers a number of unionized Employees to a new facility, the Board will presume that the unit at the new facility constitutes a separate appropriate unit. 77 To determine whether the presumption has been rebutted, the NLRB looks to such factors as (i) central control of daily operations and labor relations, (ii) interchange of Employees, (iii) similarity of skills and job classifications, (iv) commonality of working conditions, fringe benefits, and supervision, (v) DMEAST # v1 31

32 geographical separation, (vi) plant and product integration, and (vii) bargaining history. 78 f. Multi-Employer Bargaining Units A group of Employers can agree to be bound in future collective bargaining by the group rather than by their individual actions. The consent must be objective, not based on custom or past practice. The Union s consent is also required. A Union or individual Employer can unilaterally withdraw from the Multi-Employer unit by unequivocal written notice to all parties prior to commencement of negotiations. Once negotiations have commenced, the Union or an Employer can withdraw from the unit only with the express consent of all parties. 79 Bargaining units that include Employees who are solely employed by a user Employer and Employees who are jointly employed by the user Employer and a supplier Employer are permissible under the statute without the consent of the employers. 80 The Board will apply traditional community-ofinterest factors to decide if such units are appropriate. Where jointly employed new hires are placed in positions that are within the plain meaning of the contractual unit description, then the broad and unequivocal contract language compels their inclusion in the unit Rulemaking and Units in the Healthcare Industry Historically, the Board struggled with unit determinations in hospitals. The Board s application of the community-of-interests test often produced numerous bargaining units, and DMEAST # v1 32